Monthly Archives: June 2010

As Elena Kagan enters her third day of Senate confirmation hearings for her nomination to the U.S. Supreme Court, she emerged from yesterday’s questioning largely unscathed despite some testy moments.

The most memorable came courtesy of Ranking Republican Senate Judiciary Committee member Sen. Jeff Sessions, who both questioned and criticized the nominee for her role in attempting to block military recruiters from the career services office when she was dean of Harvard Law School.

Kagan said she believed she was within the limits of the law in her decision to allow the military to recruit through student military organizations, but not directly through the school. She said she believed the military’s policy of denying openly gay recruits violated the school’s anti-discrimination policy.

“I believe the ‘Don’t ask, don’t tell’ policy is unwise and unjust,” Kagan said. “I believe it now and I believe it then.”

But Sessions was not swayed by her answers.

“In fact you were punishing the military,” Sessions said. “The actions you took helped create a climate that was not healthy to the military on campus.”

Senate lawmakers got to ask questions of Supreme Court nominee Elena Kagan today, the second day of her confirmation hearings. And Senate Judiciary Committee Chairman Patrick Leahy asked her about the infamous book review in which Kagan lamented the fact that “vapid” and “hollow” Supreme Court confirmation hearings rarely yield useful information about nominees.

“You have probably reread those words,” Leahy said to Kagan.

“Many times,” Kagan said with a laugh. “And, you know, they have been read to me many times!”

Then Kagan explained herself.

“The Senate has a significant role to play in picking Supreme Court justices,” Kagan said. “The Senate has a constitutional responsibility, and should take that constitutional responsibility seriously. And it also should have the information it needs to take that responsibility seriously” and that includes “getting a feel of how a nominee approaches constitutional issues and the way they think about the law. [But] I would say there are limits to that.”

Kagan said it would be inappropriate to comment on or “grade” specific Supreme Court cases, as it would be inappropriate to comment on cases that may later come before the Court.

The U.S. Supreme Court closed its October Term 2009 yesterday on an unusually emotional note.

Before the Court announced its four blockbuster rulings yesterday, Chief Justice John G. Roberts, Jr. read a statement about the passing of Martin Ginsburg, Justice Ruth Bader Ginsburg’s husband of 56 years, calling him “a dear friend to everyone at the court,” according to NBC’s Pete Williams.

Then at the end of the session, Roberts paid tribute to retiring Justice John Paul Stevens on his last day on the bench.

“The Supreme Court convened for the first time in 1790. You have served on its bench for nearly one-sixth of its existence,” Roberts said, adding that Stevens’ departure “saddens each of us in distinct ways.”

Stevens said of his 35 years on the Court: “If I have overstayed my welcome, it is because it is a unique and wonderful job.”

Republicans sought to use Supreme Court nominee Elena Kagan’s words against her in their first round of statements in her confirmation hearings, voicing concerns that Kagan would be an activist judge based on her statement that the late Supreme Court Justice Thurgood Marshall – for whom Kagan clerked – was her hero.

That, several GOP Senate Judiciary Committee members said, is cause for alarm.

“It’s clear he considered himself a judicial activist,” said John Cornyn, R-Texas, referring to Marshall’s statement that the best way to judge is to “do what you think is right and let the law catch up.”

While Sen. Jon Kyl, R-Ariz., praised Marshall as a trailblazer in some areas of civil rights law, “Justice Marshall’s judicial philosophy is not, however, hat I would consider to be mainstream,” Kyl said.

Speaking later to MSNBC, Sen. Orrin Hatch echoed the other GOP members’ sentiments.

“There are many other case that he decided where he was deciding on the basis of results instead of the law,” Hatch, R-Utah, said.

Illinois Democrat Sen. Dick Durbin disagreed, telling Kagan that he felt “disappointment in my Republican colleagues warning us that you just might follow in the traditions of Thurgood Marshall.”

In the early opening statements from members of the Senate Judicial Committee in the confirmation hearings of Supreme Court nominee Elena Kagan, Republicans gave a preview of some of questions they will put to the nominee tomorrow – and made much of a 1995 law review article Kagan penned lamenting the fact that nominees rarely gave candid answers about their views.

“I believe you’ll hear a lot of your remarks in the law review article,” Sen. Orrin Hatch, R-Utah, said at one point in the hearing.

Sen. John Kyl, R-Ariz., questioned whether President Barack Obama nominated Kagan because “he wants justices who will use the bench to advance progressive goals.”

Kyl said he was “deeply troubled” by Kagan’s solicitor general’s brief urging the Court to take up and overturn Arizona’s immigration law which targets businesses that hire undocumented workers by revoking their business license. The Court agreed to take the case up that case, U.S. Chamber of Commerce v. Candelaria, earlier in the day.

“I think there are legitimate questions as to whether the brief authorized by General Kagan, which flies in the face of the language of the law, was motivated by political” forces in the White House and Justice Department, Kyl said.

Others criticized Kagan’s lack of judicial experience.

“Miss Kagan has never tried a case before a jury,” said committee Ranking Republican Sen. Jeff Sessions, of Alabama. “She argued her first appellate case just nine months ago.”

Some Democrats came to Kagan’s aid. “I believe you are imminently confirmable, said Sen Dianne Feinstein, D-Calif.

Others, however, also noted the difficulty of vetting a candidate without a judicial paper record. “Your judicial philosophy is almost invisible to us,” said Sen. Herb Kohl, D-Wis.

Following are excerpts of the opening statement Elena Kagan will make at hear confirmation hearings before the Senate Judiciary Committee, which begin within the hour:

“Mr. Chairman, the law school I had the good fortune to lead has a kind of motto, spoken each year at graduation. We tell the new graduates that they are ready to enter a profession devoted to ‘those wise restraints that make us free.’ That phrase has always captured for me the way law, and the rule of law, matters. What the rule of law does is nothing less than to secure for each of us what our Constitution calls “the blessings of liberty” – those rights and freedoms, that promise of equality, that have defined this nation since its founding. And what the Supreme Court does is to safeguard the rule of law, through a commitment to even-handedness, principle, and restraint.

…

“The idea is engraved on the very face of the Supreme Court building: Equal Justice Under Law. It means that everyone who comes before the Court – regardless of wealth or power or station – receives the same process and the same protections. What this commands of judges is even-handedness and impartiality. What it promises is nothing less than a fair shake for every American.

…

“[T]he Supreme Court is a wondrous institution. But the time I spent in the other branches of government remind me that it must also be a modest one – properly deferential to the decisions of the American people and their elected representatives. What I most took away from those experiences was simple admiration for the democratic process. That process is often messy and frustrating, but the people of this country have great wisdom, and their representatives work hard to protect their interests. The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the Court must also recognize the limits on itself and respect the choices made by the American people.”

…

“I’ve led a school whose faculty and students examine and discuss and debate every aspect of our law and legal system. And what I’ve learned most is that no one has a monopoly on truth or wisdom. I’ve learned that we make progress by listening to each other, across every apparent political or ideological divide. I’ve learned that we come closest to getting things right when we approach every person and every issue with an open mind. And I’ve learned the value of a habit that Justice Stevens wrote about more than fifty years ago – of ‘understanding before disagreeing.’

I will make no pledges this week other than this one – that if confirmed, I will remember and abide by all these lessons. I will listen hard, to every party before the Court and to each of my colleagues. I will work hard. And I will do my best to consider every case impartially, modestly, with commitment to principle, and in accordance with law.”

The U.S. Supreme Court has ruled that the Second Amendment right to bear arms as established in D.C. v. Heller extends to the states and municipalities. That means Chicago’s handgun ban is in peril as the case is remanded back to the lower courts to decide whether the ban unduly infringes on citizens’ Second Amendment rights.

In the 5-4 ruling, four justices held that the right is incorporated through the Fourteenth Amendment, while a single justice – Justice Clarence Thomas -held that the Privileges or Immunities Clause makes it applicable to the states.

Alito wrote the majority opinion in McDonald v. City of Chicago. Justice John Paul Stevens wrote a dissent, as did Justice Stephen Breyer, whose opinion was joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor.

That was the first of the final four cases of the term handed down this morning.

In Christian Legal Society v. Martinez, the Court upheld a law school’s “all comers” policy under which the school denied benefits to a student group that excluded gays and requires all members to share its beliefs. The Court ruled only that the “all comers” policy was reasonable, declining to rule on the school’s nondiscrimination policy as a whole. The majority opinion in the 5-4 ruling is by Justice Ruth Bader Ginsburg.

In Bilski v. Kappos the Court held that the “machine-or-transformation test” is not the sole test for patent eligibility under the Patent Act, and also that business methods are not categorically excluded from patent eligibility.

And in the final opinion of the term, the Court held in Free Enterprise Fund v. Public Company Accounting Oversight Bd. that the Sarbanes-Oxley Act violates the Constitution’s Appointments Clause because of the limitation placed on the President for removing members of the Public Company Accounting Oversight Board.

In addition to its four major rulings, the Supreme Court has agreed to consider next term whether Arizona’s other immigration law- which targets businesses that hire undocumented workers by revoking their business licenses – is constitutional.

In another, the Court will decide whether a district court had the power to decide that an employer’s conversion of an employee retirement plan to a cash-balance plan didn’t constitute age discrimination under ERISA. That case is Cigna Corp. v. Amara.

First the court is set to release the last opinions of the term beginning at 10 a.m. Among the cases to be decided today: the pivotal Second Amendment case McDonald v. City of Chicago, the patent law case Bilski v. Kappos, and the First Amendment rights case Christian Legal Society v. Martinez. DC Dicta will update all the developments from the Court later this morning.

Then, beginning at 12:30 p.m., Supreme Court nominee Elena Kagan goes before members of the Senate Judiciary Committee to begin her confirmation hearings. Although she is expected to win confirmation, this morning the committee’s ranking GOP member said Kagan will face tough questioning from Republicans.

“The nominee does have serious problems,” Sessions said on CNN this morning, noting Kagan’s lack of judicial experience, her White House work as “a Clinton operative,” and her attempt to bar the military from recruiting at Harvard which “demeaned them in violation of the law.”

“There are a number of things that cause us to believe, and many Americans are concerned, that she will be an activist justice and will advocate her political views from the bench,” Sessions said

Don’t have time to watch every minute of the confirmation hearings, but want to stay up to date? Fear not! DC Dicta will keep you updated all through the day and throughout the week with news from the hearings.

There are also sad news to report. Martin D. Ginsburg, 78, tax law expert and husband of Justice Ruth Bader Ginsburg, passed away yesterday after a long battle with cancer.

And Sen. Robert Byrd, the longest serving member in Congress in history, died this morning after falling ill lat week. He was 92.

The “Honest services” criminal fraud statute applies only to cases involving bribery and kickbacks, the U.S. Supreme Court has ruled.

The ruling overturns one of the counts for which Enron exec Jeffery Skilling was convicted – conspiracy. He was convicted of a total of 19 counts in 2006 for crimes related to his tenure at the company’s helm. The Court said it is for the lower courts to decide whether the error affects his other convictions.

In Skilling v. U.S., the Court also held that Skilling’s trial was not unfairly prejudiced by pretrial publicity.

That was one of seven cases handed down by the Court today, and one of three “honest services” rulings.

In Black v. U.S., another “honest services” fraud case involving former media mogul Conrad Black, the Court ruled that the jury instructions were incorrect in light of Skilling.

The court also issued a per curiam ruling in the public sector “honest services” case Weyhrauch v. U.S., vacating and remanding in light of Skilling.

In, Granite Rock Co. v. Teamsters, the last arbitration case pending this term, the Court held that a challenge to a collective bargaining agreement’s ratification date was a matter for a court, not an arbitrator, to decide.

The Court also rejected the challenge by a group of petitioners challenging Washington’s gay rights law to prevent their names from being made public in Doe v. Reed.

And in Magwood v. Patterson, the justices ruled that a defendant is not barred from raising a habeas challenge under the “second successive petition rule” where a new judgment is being challenged for the first time.

The Court also announced that the last day of opinions this term will be Monday.